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N.Y. ALJ Issues Further Guidance To ESCOs, Who Aren't Parties To Retail Market Review Case, Concerning PSC Staff Data Requests, Notes Staff's Subpoena Power

February 17, 2017

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Copyright 2010-17 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

A New York ALJ presiding over the PSC's evidentiary review of the retail energy mass market has issued further guidance to ESCOs who are not parties to the evidentiary proceeding, to further provide understanding to non-parties concerning data requests which have been issued to them by New York PSC Staff

Department of Public Service Staff issued information requests on February 2, 2017 directed to ESCOs. Some of those ESCOs are parties to Case 15-M-0127, Case 12-M-0476, or Case 98-M-1343, however, and some of the ESCOs to whom the information requests were issued are not parties to any of those cases.

The ALJ, as reported yesterday, issued an initial set of guidance and FAQs directed to non-party ESCOs concerning Staff's information requests, but, "I have since received several other questions from non-parties," the ALJ said.

In the newly issued guidance/FAQs, the ALJ addressed the question of non-party ESCOs' obligation to reply to Staff's information requests given that they are not parties to the proceedings.

The ALJ initially noted that, "In general, the obligation to respond to information requests stems from an individual’s or entity’s role as a party to a proceeding, which makes that individual or entity subject to the Commission’s Rules of Procedure regarding discovery. If you are not a party, those Rules do not apply and do not provide a source of authority for Department of Public Service Staff to compel you to respond to discovery requests."

"However, non-parties should be aware that, pursuant to Public Service Law Section 19, the Public Service Commission has the power to issue subpoenas and subpoenas duces tecum. This means that, if a commissioner or authorized employee, including an administrative law judge, signs and issues a subpoena, the subpoenaed individual or entity would be required to present themselves for questioning and/or produce documents. Department of Public Service Staff or other parties to these proceedings may seek a subpoena from the assigned administrative law judges to compel responses to questions or production of documents. A subpoena is enforceable in New York State court, which would also hear challenges to the subpoena. Failure to comply with an enforceable subpoena is a misdemeanor criminal offense," the ALJ said

"No party has sought a subpoena from us at this time," the ALJ said

"[A] party may choose to seek information from a non-party by requesting that a subpoena or subpoena duces tecum be issued. If a subpoena or subpoena duces tecum is signed and issued by a commissioner or authorized employee, including an administrative law judge, the subpoenaed individual or entity would be required to present themselves for questioning and/or produce documents. A subpoena is enforceable in New York State court, which would also hear challenges to the subpoena. Failure to comply with an enforceable subpoena is a misdemeanor criminal offense," the ALJ said

See the ALJ's second set of guidance/FAQs here

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